on writ of certiorari to the united states court of appeals for the second circuit

[June 20, 2013]

Justice Scalia, with whom Justice Thomas joins, dissenting.

The Leadership Act provides that “any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking” may not receive funds appropriated under the Act.
22 U. S. C. §7631(f). This Policy Requirement is nothing more than a means of selecting suitable agents to implement the Government’s chosen strategy to eradicate HIV/AIDS. That is perfectly permissible under the Constitution.

The
First Amendment does not mandate a viewpoint-neutral government. Government must choose between rival ideas and adopt some as its own: competition over cartels, solar energy over coal, weapon development over disarmament, and so forth. Moreover, the government may enlist the assistance of those who believe in its ideas to carry them to fruition; and it need not enlist for that purpose those who oppose or do not support the ideas. That seems to me a matter of the most common common sense. For example: One of the purposes of America’s foreign-aid programs is the fostering of good will towards this country. If the organization Hamas—reputed to have an efficient system for delivering welfare—were excluded from a program for the distribution of U. S. food assistance, no one could reasonably object. And that would remain true if Hamas were an organization of United States citizens entitled to the protection of the Constitution. So long as the unfunded organization remains free to engage in its activities (including anti-American propaganda) “without federal assistance,” United States v. American Library Assn., Inc.,
539 U. S. 194,
212 (2003)
(plurality), refusing to make use of its assistance for an enterprise to which it is opposed does not abridge its speech. And the same is true when the rejected organization is not affirmatively opposed to, but merely unsupportive of, the object of the federal program, which appears to be the case here. (Respondents do not promote prostitution, but neither do they wish to oppose it.) A federal program to encourage healthy eating habits need not be administered by the American Gourmet Society, which has nothing against healthy food but does not insist upon it.

The argument is that this commonsense principle will enable the government to discriminate against, and injure, points of view to which it is opposed. Of course the Constitution does not prohibit government spending that discriminates against, and injures, points of view to which the government is opposed; every government program which takes a position on a controversial issue does that. Anti-smoking programs injure cigar aficionados, programs encouraging sexual abstinence injure free-love advocates, etc. The constitutional prohibition at issue here is not a prohibition against discriminating against or injuring opposing points of view, but the
First Amendment’s prohibition against the coercing of speech. I am frankly dubious that a condition for eligibility to participate in a minor federal program such as this one runs afoul of that prohibition even when the condition is irrelevant to the goals of the program. Not every disadvantage is a coercion.

But that is not the issue before us here. Here the views that the Government demands an applicant forswear—or that the Government insists an applicant favor—are relevant to the program in question. The program is valid only if the Government is entitled to disfavor the opposing view (here, advocacy of or toleration of prostitution). And if the program can disfavor it, so can the selection of those who are to administer the program. There is no risk that this principle will enable the Government to discriminate arbitrarily against positions it disfavors. It would not, for example, permit the Government to exclude from bidding on defense contracts anyone who refuses to abjure pros- titution. But here a central part of the Government’s HIV/AIDS strategy is the suppression of prostitution, by which HIV is transmitted. It is entirely reasonable to admit to participation in the program only those who believe in that goal.

According to the Court, however, this transgresses a constitutional line between conditions that operate inside a spending program and those that control speech outside of it. I am at a loss to explain what this central pillar of the Court’s opinion—this distinction that the Court itself admits is “hardly clear” and “not always self-evident,” ante, at 8, 11—has to do with the
First Amendment. The distinction was alluded to, to be sure, in Rust v. Sullivan,
500 U. S. 173 (1991)
, but not as (what the Court now makes it) an invariable requirement for
First Amendment validity. That the pro-abortion speech prohibition was limited to “inside the program” speech was relevant in Rust because the program itself was not an anti-abortion program. The Government remained neutral on that controversial issue, but did not wish abortion to be promoted within its family-planning-services program. The statutory objective could not be impaired, in other words, by “outside the program” pro-abortion speech. The purpose of the limitation was to prevent Government funding from providing the means of pro-abortion propaganda, which the Government did not wish (and had no constitutional obligation) to provide. The situation here is vastly different. Elimination of prostitution is an objective of the HIV/AIDS program, and any promotion of prostitution—whether made inside or outside the program—does harm the program.

Of course the most obvious manner in which the admission to a program of an ideological opponent can frustrate the purpose of the program is by freeing up the opponent’s funds for use in its ideological opposition. To use the Hamas example again: Subsidizing that organization’s provision of social services enables the money that it would otherwise use for that purpose to be used, instead, for anti-American propaganda. Perhaps that problem does not exist in this case since the respondents do not affirmatively promote prostitution. But the Court’s analysis categorically rejects that justification for ideological requirements in all cases, demanding “record indica[tion]” that “federal funding will simply supplant private funding, rather than pay for new programs.” Ante, at 14. This seems to me quite naive. Money is fungible. The economic reality is that when NGOs can conduct their AIDS work on the Government’s dime, they can expend greater resources on policies that undercut the Leadership Act. The Government need not establish by record evidence that this will happen. To make it a valid consideration in determining participation in federal programs, it suffices that this is a real and obvious risk.

None of the cases the Court cites for its holding provide support. I have already discussed Rust. As for Regan v. Taxation With Representation of Wash.,
461 U. S. 540 (1983)
, that case upheld rather than invalidated a prohibition against lobbying as a condition of receiving
26 U. S. C. §501(c)(3) tax-exempt status. The Court’s holding rested on the conclusion that “a legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right.” 461 U. S., at 549. Today’s opinion, ante, at 9, stresses the fact that these nonprofits were permitted to use a separate §501(c)(4) affiliate for their lobbying—but that fact, alluded to in a footnote, Regan, 461 U. S., at 545, n. 6, was entirely nonessential to the Court’s holding. Indeed, that rationale prompted a separate concurrence precisely because the majority of the Court did not rely upon it. See id., at 551–554 (Blackmun, J., concurring). As for FCC v. League of Women Voters of Cal.,
468 U. S. 364 (1984)
, the ban on editorializing at issue there was disallowed precisely because it did not further a relevant, permissible policy of the Federal Communications Act—and indeed was simply incompatible with the Act’s “affirmativ[e] encourage[ment]” of the “vigorous expression of controversial opinions” by licensed broadcasters. Id., at 397.

The Court makes a head-fake at the unconstitutional conditions doctrine, ante, at 12, but that doctrine is of no help. There is no case of ours in which a condition that is relevant to a statute’s valid purpose and that is not in itself unconstitutional (e.g., a religious-affiliation condition that violates the Establishment Clause) has been held to violate the doctrine.* Moreover, as I suggested earlier, the contention that the condition here “coerces” respondents’ speech is on its face implausible. Those organizations that wish to take a different tack with respect to prostitution “are as unconstrained now as they were before the enactment of [the Leadership Act].” National Endowment for Arts v. Finley,
524 U. S. 569,
595 (1998)
(Scalia, J., concurring in judgment). As the Court acknowledges, “[a]s a general matter, if a party objects to a condition on the receipt of federal funding, its recourse is to decline the funds,” ante, at 7, and to draw on its own coffers.

The majority cannot credibly say that this speech condition is coercive, so it does not. It pussyfoots around the lack of coercion by invalidating the Leadership Act for “requiring recipients to profess a specific belief” and “demanding that funding recipients adopt—as their own—the Government’s view on an issue of public concern.” Ante, at 12 (emphasis mine). But like King Cnut’s commanding of the tides, here the Government’s “requiring” and “demanding” have no coercive effect. In the end, and in the circumstances of this case, “compell[ing] as a condition of federal funding the affirmation of a belief,” ante, at 15 (emphasis mine), is no compulsion at all. It is the reasonable price of admission to a limited government-spending program that each organization remains free to accept or reject. Section 7631(f) “defin[es] the recipient” only to the extent he decides that it is in his interest to be so defined. Ante, at 12.

* * *

Ideological-commitment requirements such as the one here are quite rare; but making the choice between competing applicants on relevant ideological grounds is undoubtedly quite common. See, e.g., Finley, supra. As far as the Constitution is concerned, it is quite impossible to distinguish between the two. If the government cannot demand a relevant ideological commitment as a condition of application, neither can it distinguish between applicants on a relevant ideological ground. And that is the real evil of today’s opinion. One can expect, in the future, frequent challenges to the denial of government funding for relevant ideological reasons.

The Court’s opinion contains stirring quotations from cases like West Virginia Bd. of Ed. v. Barnette,
319 U. S. 624 (1943)
, and Turner Broadcasting System, Inc. v. FCC,
512 U. S. 622 (1994)
. They serve only to distract attention from the elephant in the room: that the Government is not forcing anyone to say anything. What Congress has done here—requiring an ideological commitment relevant to the Government task at hand—is approved by the Constitution itself. Americans need not support the Constitution; they may be Communists or anarchists. But “[t]he Senators and Representatives . . . , and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support [the] Constitution.” U. S. Const., Art. VI, cl. 3. The Framers saw the wisdom of imposing affirmative ideological commitments prerequisite to assisting in the government’s work. And so should we.

Notes

1
* In Legal Services Corporation v. Velazquez,
, upon which the Court relies, the opinion specified that “in the context of this statute there is no programmatic message of the kind recognized in Rust and which sufficed there to allow the Government to specify the advice deemed necessary for its legitimate objectives,” id., at 548.

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